Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Powers of Congress – Admission of New States, and Acquisition of Territory
§ 1308. THE third section of the fourth article contains two distinct clauses. The first is “New states may be admitted by the congress into this Union. But no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the jurisdiction of two or more states, or parts of states, without the consent of the legislature of the states concerned, as well as of the congress.”
§ 1309. A clause on this subject was introduced into the original draft of the constitution, varying in some respects from the present, and especially in requiring the consent of two thirds of the members present of both houses to the admission of any new state. After various modifications, attempted or carried, the clause substantially in its present form was agreed to by the vote of eight states against three.1
§ 1310. In the articles of confederation no provision is to be found on this important subject. Canada was to be admitted of right, upon her acceding to the measures of the United States. But no other colony (by which was evidently meant no other British colony) was to be admitted, unless by the consent of nine states.2 The eventual establishment of new states within the limits of the Union seems to have been wholly overlooked by the framers of that instrument.3 In the progress of the revolution it was not only perceived, that from the acknowledged extent of the territory of several of the states, and its geographical position, it might be expedient to divide it into two states; but a much more interesting question arose, to whom of right belonged the vacant territory appertaining to the crown at the time of the revolution, whether to the states, within whose chartered limits it was situated, or to the Union in its federative capacity. This was a subject of long and ardent controversy, and (as has been already suggested) threatened to disturb the peace, if not to overthrow the government of the Union.4 It was upon this ground, that several of the states refused to ratify the articles of confederation, insisting upon the right of the confederacy to a portion of the vacant and unpatented territory included within their chartered limits. Some of the states most interested in the vacant and unpatented western territory, at length yielded to the earnest solicitations of congress on this subject.5 To induce them to make liberal cessions, congress declared, that the ceded territory should be disposed of for the common benefit of the Union, and formed into republican states, with the same rights of sovereignty, freedom, and independence, as the other states; to be of a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square; and that the reasonable expenses incurred by the state, since the commencement of the war, in subduing British posts, or in maintaining and acquiring the territory, should be reimbursed.6
§ 1311. Of the power of the general government thus constitutionally to acquire territory under the articles of the confederation, serious doubts were at the time expressed; more serious than, perhaps, upon sober argument, could be justified. It is difficult to conceive, why the common attribute of sovereignty, the power to acquire lands by cession, or by conquest, did not apply to the government of the Union, in common with other sovereignties; unless the declaration, that every power not expressly delegated was retained by the states, amounted to (which admitted of some doubt) a constitutional prohibition.7 Upon more than one occasion it has been boldly pronounced to have been founded in usurpation. “It is now no longer,” said the Federalist in 1788, “a point of speculation and hope, that the western territory is a mine of vast wealth to the United States; and although it is not of such a nature, as to extricate them from their present distresses, or for some time to come to yield any regular supplies for the public expenses; yet it must hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish for a certain period liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual states; and it may with reason be expected, that the remaining states will not persist in withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile soil of an area equal to the inhabited extent of the United States will soon become a national stock. Congress have assumed the administration of this stock. They have begun to make it productive. Congress have undertaken to do more; they have proceeded to form new states; to erect temporary governments; to appoint officers for them; and to prescribe the conditions, on which such states shall be admitted into the confederacy. All this has been done, and done without the least colour of constitutional authority. Yet no blame has been whispered, and no alarm has been sounded.”8
§ 1312. The truth is, that the importance, and even justice of the title to the public lands on the part of the federal government, and the additional security, which it gave to the Union, overcame all scruples of the people, as to its constitutional character. The measure, to which the Federalist alludes in such emphatic terms, is the famous ordinance of congress, of the 13th of July, 1787, which has ever since constituted, in most respects, the model of all our territorial governments; and is equally remarkable for the brevity and exactness of its text, and for its masterly display of the fundamental principles of civil and religious liberty. It begins by providing a scheme for the descent and distributions of estates equally among all the children, and their representatives, or other relatives of the deceased in equal degree, making no distinction between the whole and half blood; and for the mode of disposing of real estate by will, and by conveyances. It then proceeds to provide for the organization of the territorial governments, according to their progress in population, confiding the whole power to a governor and judges in the first instance, subject to the control of congress. As soon as the territory contains five thousand inhabitants, it provides for the establishment of a general legislature, to consist of three branches, a governor, a legislative council, and a house of representatives; with a power to the legislature to appoint a delegate to congress. It then proceeds to state certain fundamental articles of compact between the original states, and the people and states in the territory, which are to remain unalterable, unless by common consent. The first provides for freedom of religious opinions and worship. The second provides for the right to the writ of habeas corpus; for the trial by jury; for a proportionate representation in the legislature; for Judicial proceedings according to the course of the common law; for capital offences being bailable; for fines being moderate, and punishments not cruel or unusual; for no man’s being deprived of his liberty or property, but by the judgment of his peers, or the law of the land; for full compensation for property taken, or services demanded for the public exigencies; “and for the just preservation of rights and property, that no law ought ever to be made, or have force in the said territory, that shall in any manner whatever interfere with, or affect private contracts or engagements, bonâ fide, and without fraud previously formed.” The third provides for the encouragement of religion, and education, and schools, and for good faith and due respect for the rights and property of the Indians. The fourth provides, that the territory and states formed therein shall for ever remain a part of the confederacy, subject to the constitutional authority of congress; that the inhabitants shall be liable to be taxed proportionately for the public expenses; that the legislatures in the territory shall never interfere with the primary disposal of the soil by congress, nor with their regulations for securing the title to the soil to purchasers; that no tax shall be imposed on lands, the property of the United States; and nonresident proprietors shall not be taxed more than residents; that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same shall be common highways, and for ever free. The fifth provides, that there shall be formed in the territory not less than three, nor more than five states with certain boundaries; and whenever any of the said states shall contain 60,000 free inhabitants, such state shall (and may before) be admitted by its delegates into congress on an equal footing with the original states in all respects whatever, and shall be at liberty to form a permanent constitution and state government, provided it shall be republican, and in conformity to these articles of compact. The sixth and last provides, that there shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes; but fugitives from other states, owing service therein, may be reclaimed.9 Such is a brief outline of this most important ordinance, the effects of which upon the destinies of the country have already been abundantly demonstrated in the territory, by an almost unexampled prosperity and rapidity of population, by the formation of republican governments, anti by an enlightened system of jurisprudence. Already three states, composing a part of that territory, have been admitted into the Union; and others are fast advancing towards the same grade of political dignity.10
§ 1313. It was doubtless with reference principally to this territory, that the article of the constitution, now under consideration, was adopted. The general precaution, that no new states shall be formed without the concurrence of the national government, and of the states concerned, is consonant to the principles, which ought to govern all such transactions. The particular precaution against the erection of new states by the partition of a state without its own consent, will quiet the jealousy of the larger states; as that of the smaller will also be quieted by a like precaution against a junction of states without their consent.11 Under this provision no less than eleven states have, in the space of little more than forty years, been admitted into the Union upon an equality with the original states. And it scarcely requires the spirit of prophecy to foretell, that in a few years the predominance of numbers, of population, and of power will be unequivocally transferred from the old to the new states. May the patriotic wish be for ever true to the fact, felix prole parens.
§ 1314. Since the adoption of the constitution large acquisitions of territory have been made by the United States, by the purchase of Louisiana and Florida, and by the cession of Georgia, which have greatly increased the contemplated number of states. The constitutionality of the two former acquisitions, though formerly much questioned, is now considered settled beyond any practical doubt.12
§ 1315. At the time, when the preliminary measures were taken for the admission of the state of Missouri into the Union, an attempt was made to include a restriction, prohibiting the introduction of slavery into that state, as a condition of the admission. On that occasion the question was largely discussed, whether congress possessed a constitutional authority to impose such a restriction, upon the ground, that the prescribing of such a condition is inconsistent with the sovereignty of the state to be admitted, and its equality with the other states. The final result of the vote, which authorized the erection of that state, seems to establish the rightful authority of congress to impose such a restriction, although it was not then applied. In the act passed for this purpose, there is an express clause, that in all the territory ceded by France to the United States under the name of Louisiana, which lies north of 360 30′ N. Lat., not included within the limits of the state of Missouri, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby for ever prohibited.13 An objection of a similar character was taken to the compact between Virginia and Kentucky upon the ground, that it was a restriction upon state sovereignty. But the Supreme Court had no hesitation in overruling it, considering it as opposed by the theory of all free governments, and especially of those, which constitute the American Republics.14
1. Journal of Convention, p. 222, 307, 308, 309, 310, 311, 365, 385.
2. Article 11.
3. The Federalist, No. 43.
4. 2 Pitk. Hist. ch. 11, p. 17, 19, 24, 27, 28, 29 to 32; Id. 32 to 36; 1 Kent’s Comm. Lect. 10, p. 197, 198. See also 1 Secret Journals of Congress in 1775, p. 368 to 386; Id. 433 to 438; Id. 445, 446.
5. 1 Tuck. Black. Comm. App. 283, 284, 285, 286; 2 Pitkin’s Hist. ch. 11, p. 33 to 36; 1 U.S. Laws, (Duane &, Bioren’s Edition,) p. 467, 472; ante vol. 1, § 227, 228.
6. See 1 Secret Journals of Congress, 6th Sept. 1780, p. 440 to 444; 6 Journal of Congress, 10th Oct. 1780. p. 213; 2 Pitkin’s Hist. ch. 11, p. 34, 35, 36; 7 Journal of Congress, 1st March, 1781, p. 43 to 48; Land Laws of U. S. Introductory chapter, 1 U. S. Laws, p. 452, (Duane & Bioren’s Edition.)
7. See Amer. Insur. Company v. Carter, 1 Peters’s Sup. R. 511, 549.
8. The Federalist, No. 38, 42, 43.
9. See 3 Story’s Laws of United States App. 2073, etc.; 1 Tucker’s Black. Comm. App. 278, 282.
10. In Mr. Webster’s Speech on Mr. Foote’s Resolution, in Jan. 1830, there is a very interesting and powerful view of this subject, which will amply repay the diligence of a deliberate perusal. See Webster’s Speeches, etc.; p. 360 to 364; Id. 369. It is well known, that the ordinance of 1787 was drawn by the Hon. Nathan Dane of Massachusetts, and adopted with scarcely a verbal alteration by Congress. It is a noble and imperishable monument to his fame.
11. The Federalist, No. 43.
12. See Ante, Vol. iii. p. 156, § 1278 to § 1283; American Insurance Company v. Canter, 1 Peters’s Sup. R. 511, 542.
13. Act. 6, March 1820, ch. 20. The same subject was immediately afterwards much discussed in the state legislatures; and opposite opinions were expressed by different states in the form of solemn resolutions.
14. Green v. Biddle, 8 Wheat. R. 1, 87, 88.